Tuesday, March 22, 2016

"Originalism as Faith": My Response to Professor Solum

By Eric SegallI recently placed on SSRN an essay
that is forthcoming in the Cornell Law Review on Line titled “Originalism as
Faith.” Professor Larry Solum responded
to the piece on his Legal Theory Blog, and suggested I made three “mistakes”
about his views.

My essay discusses the role (or lack thereof) originalism
plays in constitutional interpretation and critiques a recent article
in the Columbia Law Review by University of Chicago Law Professor Will Baude titled
"Inclusive Originalism." My main thesis is that Baude's "inclusive
originalism" specifically and "New Originalism" more broadly,
either inaccurately describe constitutional decision-making by mislabeling
non-originalist decisions as originalist, or define originalism in a way that
is indistinguishable from non-originalist methods. Either way, Professor Baude
and other New Originalists overstate the importance of original meaning to
constitutional law. I suggest at the end of this piece that they do so largely
to avoid the realist critique that values, not text or history, drive Supreme
Court decisions.

Professor Solum says that I should not have referred to him
as a “moderate” as he keeps his political views to himself. He is correct. I made
an error, I own it, and I have apologized to him.

Professor Solum also takes issue with my statement that "Other
New Originalists such as Randy Barnett and Lawrence Solum agree with this
notion that the meaning of vague constitutional provisions may evolve over time
as facts and circumstances also change." Professor Solum responds that his
“view is that the meaning of every constitutional provision, including but not
limited to the vague, open-textured, and irreducibly ambiguous constitutional
provisions, is fixed at the time each provision is framed and ratified.” Thus,
I mistakenly characterized his views.But, Professor Solum also says that “although meaning is
fixed, applications of meaning to fact does change--necessarily so, since facts
themselves change over time.” My point throughout the piece, indeed a point
I have made repeatedly on this blog, is that judges only care about the “applications
of meaning to fact,” and thus if results in cases change over time because
facts and context change, where text does not, and one views that as
permissible, then there is no meaningful difference between “living
constitutionalism” and “originalism.”This point is furthered by my concession
in the essay that I am, like Professor Baude, writing for judges and lawyers, not philosophers. For the actual practice of law, there is not a dime's worth of
difference between a judge concluding that the meaning of a provision has
changed or concluding that the application of that meaning has changed. As I wrote in 1998, the very first person to ever use the phrase the "living constitution" in what I believe is the first serious scholarly effort to discuss original meaning in constitutional litigation (the article was written in 1900), said the following:

While denying in the most unqualified terms the notion that the Constitution is capable of a varying construction, we may often be swayed by the same arguments advanced in favor of that heresy, and even reach the same results, but in a perfectly legitimate way, simply by a careful discrimination between matters of law and fact. The law of the Constitution remains forever unchanging: the facts to which it must be applied are infinitely various.

I think this is an accurate description of how the Supreme Court decides cases, I think it is essentially the same description as Professor Solum's, and I think it shows that in real cases litigated in real courts, originalism and living constitutionlism end up in the same place.Professor Solum’s third objection to my piece is to my
statement that “apparently, Randy Barnett’s and Lawrence Solum’s “New
Originalism” and Professor Baude’s “inclusive originalism,” allow Supreme Court
Justices to permit legislatures to ignore clear constitutional commands, and
clear original expectations about those demands, if modern circumstances so
require." Professor Solum responds
that “this is not my view, and Segall provides no citation in support of this
assertion. My view, expressed on
multiple occasions and defended in depth in a work-in-progress, 'The
Constraint Principle,' is that constitutional actors, including
legislatures and the Justices of the Supreme Court, should not act in ways that
are inconsistent with the communicative content of the constitutional text.”

I will not argue with Professor Solum’s description of his
own views other than to suggest that, to the best of my knowledge, he has not
described with any specificity constitutional provisions that express “communicative
content” that he believes would actually bind judges in real life constitutional cases without regard
to changed “applications.” Lawyers and judges don’t have a
strong stake in hypothetical “clear meanings." Professor Solum, however, may be writing for a different audience.

Finally, Professor Solum also says the following: “Professor
Baude can speak for himself, but my sense is that Segall's representations of
Baude's views should not be taken on face value and that readers should consult
Baude's article and compare his position to Segall's representations of that
position.”

I agree people should read both pieces (I sent mine to
Professor Baude months ago), but the implication or "sense" that I did not fairly
represent his views is false. Of course, reasonable people can disagree about
my assessment of Baude’s views.

In the interests of collegiality, and without confessing
error on any point other than my characterization of his views as “moderate”, I
have deleted all but one reference to Professor Solum in my essay.

Eric, I enjoyed the article. Can I suggest you try to match thr formatting of the other authors on this site in terms of typeface and indentation though? Clearly you are drafting in ms word, but taking the extra five minutes to standardize the formatting would really help me to not immediately discount the views, as silly as that sounds.

I do regularly read Larry Solum's Legal Theory Blog and enjoy its broadness of posts. I had long had the feeling that Solum was apolitical in his views on originalism. However, in recent months Solum has engaged more editorially with his posts on originalism articles. I still want to believe he is apolitical on originalism. His blog is broad and not limited to originalism as compared to the Originalism Blog, which I visit daily (several times). The Originalism Blog is, in my view, political on originalism although not all of the posters are in 100% lockstep. (By the way, a couple of months ago at Balkinization Jack Balkin provided a link to a seminar - I think at BC Law School? - in which Solum participated; I was impressed with the panel discussion. There were some disagreements between Jack and Solum, though each claims New Originalism.)

Solum has a major focus on the fixation thesis he expounds. But how does this apply when the Constitution is not clear and the new originalist looks to "construction" to aid in interpretation. I have raised this point in comments at Balkinization. (Solum's Legal Theory Blog does not provide for comments.) I assume Solum may respond to this post and hope that he addresses this point on the application of the fixation thesis in case "construction" principles are required for interpretation of constitutional provisions that are not clear.

I welcome the colloquy, especially when it is civil. And I continue to enjoy Solum's Legal Theory Blog and appreciate his recommendations on certain articles he posts on. But one quarrel I have is with the premise that it takes a theory to beat a theory. There are many versions of originalism, thus many theories, which at times beat up on each other. Law, including constitutional law, is not the world of physics in applying a theory.

Eric -- isn't there a pretty clear difference between changing meanings and changing facts: namely, that the changed facts at least have to be material under the fixed meaning. Take, for example, the Recess Appts case. If "may happen during" means "occur during" rather than "exists during," then the only relevant fact is when the vacancy occurred. Any other facts -- such as the ease of convening the senate, the degree of senate obstructionism, etc. -- are legally irrelevant under that fixed semantic meaning, no matter how much they've changed since the founding, and no matter how much those facts may have influenced the adoption of the recess appts clause. Whereas allowing changing meaning simply permits the court to pick the alternate rule.

No, judges can reach almost any result they want by changing facts and context. If there is a difference, it is not worth discussing. Why do you think the age old adage is first give the judge the reason to vote for you and then, after that, give her the law.

Eric, in the recess-appts case, how could a judge have reached a different result by "changing facts and context" if they conceded that the binding semantic meaning of "may happen during" meant "occur during"? That was a major constitutional case that is of particular importance right now with the Scalia vacancy. Sure seems like an issue "worth discussing." Perhaps your disinclination to do so despite my initial post is because you know that it quite clearly refutes your extreme position.

As for your "age old adage," the structure of most SCt briefs would suggest otherwise.

Having recently finished Baude's piece, I had much the same reaction to it that you did. Any "originalism" that can give us Brown, Loving, Blaisdell, Reed, , and Obergfell. is simply what everyone else is doing, just in drag.

CJ's comment in my view well demonstrates the fallacy of it takes a legal theory to beat a legal theory, as some originalists desperately attempt to use originalism principles in supporting decisions like Brown v. Bd. of Educ. In this day and age, only a few openly, directly challenge Brown, so it has to be brought into the fold of originalism in support of (drum roll) originalism.

Blaisdell seems particularly non-originalist in any way the term is supposed to restrain. Basically, the means of assumed acceptable limits on contracts grew over time, even if some broad principle was retained. But, who isn't okay with that?

The other cases in the past just led me to say on this blog that true that might be, but don't think Obergfell was the final straw. If interracial marriage is constitutionally protected, why not same sex marriage?

If you try to use original understanding (or whatever term they used -- it's a parlor game at this point to poke holes in their logic), broad opposition to class discrimination can be cited to protect same sex marriage. To call that "originalism" might be deemed ridiculous but there is again nothing new to that problem.

I note too a reference to a rare structural process opinion (recess appointments) as a "gotcha" when it was noted that such cases already are cited as different & rarely come up. The "almost any result" comment isn't refuted by Scalia. Recess appointments for even appellate judges have happened very rarely in the last fifty years & basically was deemed inappropriate without any court deciding it.

And, changing facts -- modern ability of Congress to stay in session easily -- also made the matter almost moot. This in fact was referenced by Scalia's concurrence as a reason his position was acceptable along with the ability to quickly call them back in session etc. Meanwhile, a range of other cases that actually arise are met by ES's comment though in the past I argued he lays it on a tad too thick.

Some originalists (Randy Barnett?) have developed software programs to examine many, many statements/documents/newspapers, etc, back in time of the 1787 Constitution and the Bill of Rights ratified in 1791 in determining the original meaning of certain provisions in the Constitution/Bill of Rights, suggesting an expansion of this project to the Reconstruction Amendments and subsequent Amendments, that with a push of some keys/buttons (drum roll) we can readily determine the meaning of the Constitution as amended. But even these originalists recognize that subsequent discoveries of statements/documents/newspapers, etc, can result in OOPS! constitutional moments, perhaps recognizing the "garbage in, garbage out" syndrome.

Such resources does ease selective application of the facts including in sixty page downloadable articles that Shag can print out and read at his leisure. Perhaps with some Madeira wine (Justice John Marshall's favorite) for atmosphere.

None of this is to say that there might not be some occasions when a determinable original meaning points to a definite result and there are no, or few, or not very weighty, reasons to justify a different result. I haven't studied the recess appointments case carefully enough to weigh in on whether it was one such case, but such cases will probably be rare. If they are that clear, they will be unlikely to be litigated.